Plaintiffs: No-fly list deprives due process right

PORTLAND, Ore. (AP) - Thirteen people say their placement on the no-fly list deprives them of their due process rights, while lawyers defending the U.S. government say explaining such placement would involve classified information and endanger national security.

In August, U.S. District Court Judge Anna Brown's rejected the government's assertion that people on the no-fly list can travel by other means, and that being on the list does not deprive them of their liberty. She asked the government for more information about its redress procedure to help her determine whether it satisfied due process requirements for the plaintiffs.

Lawyers representing the government said in federal court in Portland, Ore., on Monday that a person's right to a hearing concerning his no-fly list status is limited, given the national-security issues, and cautioned Brown not to "take over the policymaking" by writing new rules if she decides that the system is unfair.

The people seeking notice for their placement on the list were represented by lawyers for the American Civil Liberties Union, who argued that the process is inherently unfair to its clients by refusing to tell them what evidence put them on the list and shutting them out of the appeals process.

No-fly list appeals go to a federal appellate court, which makes a decision based only on government input. That system, the ACLU argues, violates people's rights.

"No one denies that the government has an important national security interest," said ACLU attorney Hina Shamsi. "The question is whether that interest is so all-encompassing that a citizen can be denied ... the fundamental right of due process?"

Shamsi said a better system would allow for people to challenge the unclassified portions of the information used to put them on the list, or to have their attorneys given security clearances to review classified material.

The government has never confirmed nor denied that the plaintiffs are on the list. Government attorney Amy Powell said the plaintiffs don't know whether they're on the no-fly list; they were merely denied boarding, which could have been for several reasons that have nothing to do with the no-fly list.

Powell said the constantly changing nature of the list means they may have been on it at one point, but have since been removed.

That seemed to frustrate Brown, who repeatedly broke into Powell's argument to pose questions about the government's rationale for keeping people from knowing that they were on the list, even after they had been placed on it.

"If a person is on the list and is denied boarding, whether they're told after the fact, it's not reasonable to infer that that is a secret anymore," Brown said.

Powell replied that the list is "highly dynamic."

"Now you're going to say that the person is going to have to continue to purchase tickets every (day)," Brown said.

Would-be travelers banned from a flight can fill out an online form with the Department of Homeland Security. The government examines it and makes a decision on the traveler's status. Those unhappy with the result can get a judicial review, but not a hearing where evidence would be presented.

The Justice Department said the procedure strikes an appropriate balance by providing a review without requiring the release of classified information.

The no-fly list, a well-protected government secret, decides who is barred from flying at U.S. airports, and is shared with ship captains and 22 other countries. The FBI has said the list requires secrecy to protect sensitive investigations and to avoid giving terrorists clues for avoiding detection.

The plaintiffs argue that being on the list harms their reputations. Several who filed suit said they have been surrounded at airport security areas, detained and interrogated.

One of the plaintiffs, Abe Mashal, learned he was on the list when trying to fly from Chicago to Spokane, Wash, according to the lawsuit. The Marine veteran said his presence on the list has cost him business clients, and stopped him from attending a wedding, a funeral and a graduation.

Another, Stephen Durga Persaud of Irvine, Calif., was not allowed to board a flight from the U.S. Virgin Islands to Miami. He ended up taking a five-day boat trip and a four-day train ride to get back to Southern California for the birth of his second child. Others were unable to visit relatives in the Middle East.

The lawsuit filed in 2010 moved between district and appellate courts before a decision last summer by the 9th U.S. Circuit Court of Appeals put the lawsuit back under Brown's jurisdiction.

Brown did not give an estimate for when her decision would be released.

Comments

The NDAA takes away your right to due process, not just a no fly list, but anything the govermentdeems as a national security threat. That can be abused by the goverment for anything they wantto do to you. It takes away your 4th, 5th, and 6th amendment rights. I don't have a problem withthe no fly list, but I believe a person has a right to due process. The goverment is taking away yourrights little by little, if we let this happen, then one day we won't have a Bill of Rights.

"NO shoes, NO shirt, NO service." Okay, we know what we have to do. Stay out of that restaurant or other business establishment (privately owned) or put on a shirt and some shoes. But if we choose to cause a nasty scene and go in and sit down, we have the prospect of doing absolutely no physical, mental, emotional or other kind or harm to the other patrons in that place. An airplane is not a public facility. Courthouses are, most libraries are, most schools are. They have security at every courthouse in this nation that I have ever entered. Libraries have rules .. don't speak loudly, etc. Yet if I holler in a library, I am hurting no one. Now, if I enter a courthouse with a gun or a knife, there is obviously the potential of my harming someone, so I am screened before entering to ensure I am no such danger. Look at the school killings that maybe could have been avoided if security checks at the entrance to their parking lots and again at the outside of the entryway doors had been conducted. I had to go through the school office to prove my identity and obtain an ID sticker to sit in an auditorium and watch my great nephew sing with his class at Christmas time. We hire our government to protect us. Sure they bungle things sometimes, but when are we going to accept the fact that if they get it even half right, they have at least saved half of the people threatened by someone who wants to board an airplane with a weapon, or intent to hi-jack or blow up that convenayce. The government requires one to have a driver's license which is initially at least obtained by passing written and practical testing. It is entirely subjective on the person giving the test whether I parked close enough to the curb to get that license. Flying in a commercial plane (which is NOT a public facility -- it is a privately owned and operated vehicle) is a privilege, not a right. Just like driving a car is. If you drive a car you have to have insurance. Well, if you want to fly in an airplane, you have to be above reproach as to certain safety parameters established by whom we hired in the first place, and pay dearly to serve us, our government. Remember, we did not do this to ourselves, the slimy little bastards who took down the World Trade Centers in 2001 did it to us, all we are doing is trying to thwart a repeat performance. The legal argument that these No-Fly listed people are not told why they are on that list is prejudicial to their civil rights is ridiculous. Don't you really think that they know darn well why they are on that list? Or don't you think if they are mistakenly put on that list that there is not some process in place by which they can communicate with authorities to have their names removed therefrom? Come on! The current situation in Malaysia may well prove to be caused by lack of security, not over-securing, and 283 souls are just somewhere out there in limbo. You wanna go there?

Having travelled for the US goverment for years I am always amused by The totally stupid Authority (TSA) . In 2010 I was stopped 27 times in a row for "random" spot security checks. I explained to the twit that 27 times in a row isn't random; I was assured it was just chance. I once warned TSA that I had been handling explosives earlier in the day and would test posative for residue... I did and the SWAT team responded. Not even an apology several hours later. What morons we hire!

not sure I understand, you mean you can buy a ticket and get to boarding and they can deny you even though you have no idea you are on a list? how does anyone ever know they are on a list and what for? seems weirdly arbitrary doesn't it?

But our Constitution does apply to non-Americans quite clearly. It makes few definitions of citizenship but covers all people within the borders of the nation. Insofar as terrorists are concerned, how does one decide who is a "terrorist" withou due process of law?

I moved out of the US years ago. Will most probably not return and the biggest reason is the foolishness of going through the hassle to fly.

The thought of being put on a no fly list really scares me. I'm a veteran, have worked/lived overseas most of the past 20+ years and remember having very expensive bicycle wheels ruined when TSA checked the bicycle box and refused to let me help repack it. Being placed on a no fly list for some unknown reason is frightening. I've read of US citizens flying out of the US and being refused a flight back in.

A friend recently visited me in Portugal from Spain and she was told to be sure and arrive at the gate 30 minutes before takeoff. Hardly the multiple hours required to get on a plane in the US.